Archive | Textualism

Arms and Persons

Eugene Kontorovich has argued that the plural “Arms” in the Second Amendment implies a right to more than one gun per person. I argued that “Arms” had to be plural to match “the right of the People,” plural, and so the plural tells us nothing about number of guns per person. Eugene responds with a comparison to the Fourth Amendment: “Is the ‘people’s’ right to be secure in their ‘houses, papers, and effects’ even arguably singular, or be [sic] restricted to one house, one paper, one effect?”

Fair enough, but Eugene skips a telling counterexample. The Fourth Amendment also protects “The right of the people to be secure in their persons ….” The word “persons” had to be plural — just as “houses,” “papers,” “effects,” and “Arms” all had to be plural — to match the plural word “people.” Nevertheless, each individual presumably has a right to be in secure only in his own, singular, person. So, the plural nouns in the text simply do not answer the question of number per person; even though both “persons” and “papers” are plural in the text, each individual has a right to be secure in his person (singular) and his papers (plural). At least as a matter of grammar, “Arms” could be like “papers” (presumably many per individual), or like “persons” (presumably one per individual).

Again, I am sympathetic to Eugene’s ultimate conclusion, but I don’t think that grammar proves the point. [...]

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Treaties, the Law of Nations, and Foreign Commerce

I’m delighted to see Rick Pildes will be guest-blogging, and the exchange with Nick on the Treaty Power will be a treat.

I would invited them to consider an aspect of the question that has long interested me:
What is the relationship between the Offenses Power, the Treaty Power, and the Foreign Commerce power? All three might overlap at their edges (assuming they are not entirely congruent), and the extent of the overlap would say a lot about the extent of the other powers. If for example, the Foreign Commerce power is even broader than the Interstate one, then the scope of the treaty power becomes even less important.

Hamilton, as I’ve mentioned before saw the Treaty Power as in some ways ways being not coterminous with the Foreign Commerce power, and my understanding of the Offenses Power has always been that it was distinct from the Treaty Power. An example of how such delimitations might matter would be whether the courts can consider, as they sometimes do, unratified treaties in determining the “Law of Nations.”

UPDATED with minor edits. [...]

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When a Horse is More than Just a Horse, and Also Qualifies as a “Vehicle”

UCLA lawprof Steve Bainbridge has an interesting post discussing cases in several states where people have been charged with driving under the influence because they were drunk while riding horses or mules. This despite the fact that DUI statutes are usually limited to people who were driving a “vehicle.” In ordinary language, the word “vehicle” generally refers only to inanimate objects, not horses or other beasts of burden. For this reason, I agree with Steve’s view that these charges are problematic. There may well be good reasons for state legislatures to ban drunk horseback riding. But if so, they should do so explicitly.

UPDATE: I wrote this post before noticing co-blogger Jonathan Adler’s recent post on the same subject. [...]

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Debating Textualism

The University of Pennsylvania Law Review’s online journal, Pennumbra, has a debate on the future viability of textualism. The debate focuses on Professor Jonathan Siegel’s important recent article, “The Inexorable Radicalization of Textualism,” which contends that textualism necessarily leads to unacceptable results and is therefore doomed to lose the “interpretation wars.” Here’s a summary of my response to Siegel (the summary was drafted by the Pennumbra editors):

In Is Textualism Doomed?, Professor Ilya Somin counters Professor Siegel’s argument that textualism is ultimately doomed to irrelevance because its “inexorable radicalization . . . will cause it to lose the interpretation wars.” Somin contends that Siegel’s normative critique of textualism and positive prediction about its future are overdrawn. In Part I, Professor Somin shows that adherence to text does not inevitably lead to absurd and extreme results. In Part II, Somin claims that Siegel has understated the importance of textual ambiguity. He argues that when faced with an ambiguous text, resorting to extrinsic evidence of meaning is entirely consistent with textualist premises and may sometimes even be required by them. In Part III, Somin finds that textualism is here to stay, and will not “work itself pure” as Siegel has argued. Somin concludes by reasoning that because federal judges are not as interested in “grand theories of interpretation” and methodological consistency as academics are, they will not take textualism to its logical extreme.

Pennumbra also has an interesting response by Professor Lawrence Solan of Brooklyn Law School, which makes some of the same points, though I think Solan is ultimately less sympathetic to textualism than I am (we did not have any opportunity to see each other’s pieces prior to publication).

In many ways, I come to this debate as an outsider. Although I sometimes teach Legislation, it is not my [...]

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